The Customs and Excise Division has been given a boost in its job of policing the importation and exportation of goods as the Court of Appeal ruled that it was not required to prove a person’s intent to convict them of making false declarations and for importing prohibited items.
In a 64-page judgment delivered at the Hall of Justice, last week, the Appeal Court ruled that sections 213 and 214 dealing with the crimes were strict liability offences which did not require prosecutors to prove mens rea (intention or knowing of wrongdoing).
In a press release issued yesterday, the division described the judgment as a landmark decision.
“The decision is an important win for the Customs and Excise Division since it means that for offences where prohibited goods are imported or smuggled into T&T the prosecution does not have to prove that the offender had knowledge for a successful conviction,” the release said.
While the court said that almost all criminal offences require an element of intent, it ruled that strict liability could be imposed by Parliament and inferred in some cases where it is not expressly stated.
“The offences in question deal with issues of social concern namely, smuggling and revenue control, and construing them as offences of strict liability would be effective in helping to promote the objectives of the statute and in helping to promote vigilance in respect of the activities giving rise to those offences,” the judges said.
They stated that issues with the fairness of strict liability offences could be addressed.
“Any resultant harshness can be moderated by an appropriate, rationalised, harmonised and well coordinated Customs prosecution policy,” the judges said.
The court also dealt with the “Halfway House” approach used in foreign jurisdictions whereby people are required to prove that they took all reasonable care to prevent the commission of the crime.
“In our view, adopting a principled approach, the alteration of such pivotal principles of criminal law and in particular, the imposition of a reserve burden of proof, ought to be a matter for Parliament to consider and not for the courts to develop incrementally as a matter of common law,” the judges said.
The ruling was part of an appeal filed by division against Canserve Caribbean Ltd and its employee Darren Nurse, who were charged in 2009 with importing 51 gambling machines while they declaring that the shipment was office furniture.
A magistrate who presided over their trial had upheld their no case submission on several grounds including the failure of Customs prosecutors to prove that Nurse and the company intended to defraud the division.
Ruling on the issue of intent, Appellate Judges Rajendra Narine, Prakash Moosai and Mark Mohammed stated that the magistrate made an error and ordered that Nurse and the company be retried.
However, another employee Cindy Gibbs, who was also charged with the offences and benefited from the no case ruling, was successful in the appeal. The court ruled that she rightly benefited from the magistrate’s decision as it was Nurse, who was alleged to have made the declarations, and her only role was accompanying him to the Pt Lisas Port on the date that the machines were found.
In its decision the court also ruled that the magistrate was wrong when she found that the machines could not be classed as prohibited items as they were imported in parts and the division’s staff was unable to reassemble and test them.
The court held that the evidence of manuals for the devices was sufficient to prove that they were to be used for gambling.
Gilbert Peterson, SC, represented the Customs and Excise Division. Jagdeo Singh represented the company, Nurse and Gibbs.
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